[1] The application of Article 8 (3) of the Land Excess Profits Tax Act

[2] The meaning of "the purpose of constructing a new building" under Article 23 (3) of the former Enforcement Decree of the Land Excess Profit Tax Act and the burden of proof

[3] Whether the amended provisions, etc. pursuant to the Constitutional Court's ruling of inconsistency with the Constitution as to the former Land Excess Profit Tax Act are retroactively applied (affirmative)

[1] Article 8 (3) of the Land Excess Profit Tax Act applies only to the reasons listed in the law and other unavoidable reasons individually and specifically prescribed by the Presidential Decree, and there are other unavoidable reasons, and it cannot be included in the scope of the application.

[2] "The purpose of constructing a new building" under the main sentence of Article 23 subparagraph 3 of the former Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) refers to the intention of constructing a new building within a reasonable time after preparing a plan and funds to build a new building, and the fact that the new building is acquired is related to the requirement for the exclusion of idle land, etc. under Article 8 (3) of the Land Excess Profit Tax Act, so the plaintiff who is the taxpayer must prove it.

[3] On July 29, 1994, the Constitutional Court decided that the former Land Excess Profit Tax Act does not conform with the Constitution. Accordingly, the National Assembly revised the tax base provisions (Article 11 of the Act) and tax rate provisions (Article 12 of the Act) that pointed out that the above decision of inconsistency with the Constitution was unconstitutional or unconstitutional as of December 22, 1994 by Act No. 4807 of Dec. 22, 1994. In calculating the tax base, the National Assembly newly established the basic deduction provision that deducts KRW 2 million from the land excess profit during the pertinent taxable period (Article 11-2 of the Act), and the above amended provisions are the same as the pertinent case (Article 11-2 of the Act).

[1] Article 8(3) of the Land Excess Gains Tax Act; Article 23 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) / [2] Article 23 subparag. 3 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) / [3] Article 107(1) of the Constitution of the Republic of Korea; Article 47(2) of the Constitutional Court Act; Articles 11, 11-2, and 12 of the Land Excess Gains Tax Act

[2] Supreme Court Decision 93Nu7303 delivered on May 10, 1994 (Gong1994Sang, 1729) Supreme Court Decision 93Nu1202 delivered on June 10, 1994 (Gong1994Ha, 1982) Supreme Court Decision 94Nu5038 delivered on October 28, 1994 (Gong1994Ha, 3152) / [3] Constitutional Court Decision 92Hun-Ba49, 52 delivered on July 29, 1994 (Gong12792No 3696 delivered on July 16, 1995) 94Da20402 delivered on July 28, 1995 (Gong19694 delivered on September 196, 194)

Plaintiff (Attorney Lee Ho-hoon, Counsel for the plaintiff-appellant)

Director of the District Office

Seoul High Court Decision 92Gu24815 delivered on April 8, 1993

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

(1) On the first ground for appeal

Article 8 (3) of the Land Excess Profit Tax Act provides that "any land falling under idle land, etc. due to the prohibition of use due to the provisions of Acts and subordinate statutes after the acquisition of the land, the destruction or collapse of a ground building, or other inevitable reasons prescribed by Presidential Decree shall not be deemed idle land, etc. during the period prescribed by Presidential Decree, notwithstanding the provisions of paragraph (1)." Thus, the above provision applies only to the reasons listed in the law and other inevitable reasons prescribed individually and specifically by Presidential Decree, and it shall not be included in the application of the above provision on other inevitable reasons. There is no reason for other argument.

(2) On the second ground for appeal

Article 23 subparagraph 1 of the Enforcement Decree of the Land Excess Profit Tax Act (amended by Presidential Decree No. 13198, Dec. 31, 1990) provides that "Where the use of land is prohibited or restricted by the provisions of Acts and subordinate statutes after the acquisition of the land, and the use is prohibited or restricted by the provisions of the Acts and subordinate statutes before this Decree enters into force, and where the use is continuously prohibited or restricted by the provisions of the Acts and subordinate statutes before this Decree enters into force, Article 23 subparagraph 3 of the Enforcement Decree of the Land Excess Profit Tax (amended by Presidential Decree No. 13198, Dec. 31, 199) shall apply as of the date on which

According to the facts established by the court below, the plaintiff acquired the land price of this case on October 14, 1989, which was after the construction permit was limited since Kimpo-do was designated as an urban design area. Thus, there is no room to apply the above provision to this case. There is no reason to discuss this issue.

(3) "Purpose of constructing a new building" under the main sentence of Article 23 subparagraph 3 of the former Enforcement Decree of the Land Excess Gains Tax Act (amended by Presidential Decree No. 14470 of Dec. 31, 1994) refers to an intention to build a new building within a reasonable time after preparing a plan and funds to build a new building (see Supreme Court Decisions 93Nu7303, May 10, 1994; 93Nu12022, Jun. 10, 1994). The fact that the new building is acquired is related to the requirement of exclusion from idle land, etc. under Article 8 (3) of the Land Excess Gains Tax Act, so the plaintiff who is the taxpayer must prove it, and the court is not obligated to urge it to prove it. It is difficult to accept the judgment of the court below as an error of law due to incomplete deliberation or a mistake of facts due to lack of right to use a stone.

(4) However, on July 29, 1994, the Constitutional Court rendered a decision that the former Land Excess Profit Tax Act does not conform with the Constitution. Accordingly, on December 22, 1994, the National Assembly revised the tax base provisions (Article 11 of the Act) and the tax rate provisions (Article 12 of the Act) that pointed out that the above decision of inconsistency with the Constitution is unconstitutional or unconstitutional as of December 22, 1994. In calculating the tax base, there was a newly established basic provision that deducts KRW 2 million from the land excess profit in the pertinent taxable period (Article 11-2 of the Act) and the above amended provisions are applied retroactively to this case, so in this regard, the judgment of the court below shall be reversed as a result of an error affecting the conclusion of the judgment by applying the tax base and tax rate laws and regulations.

(5) Therefore, the lower judgment is reversed ex officio, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)